Green Card & Visa News » Department Of Homeland Security http://greencardandvisanews.com News regarding Immigration Fri, 18 May 2012 06:59:03 +0000 en hourly 1 http://wordpress.org/?v=3.3 New hope for foreigners who are subject to the three/ten year bar http://greencardandvisanews.com/new-hope-for-foreigners-who-are-subject-to-the-threeten-year-bar http://greencardandvisanews.com/new-hope-for-foreigners-who-are-subject-to-the-threeten-year-bar#comments Tue, 10 Jan 2012 21:44:00 +0000 Tushar Mathur http://greencardandvisanews.com/?guid=d1692dae007d30ea84e22e4394926fc8 A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.



]]> http://greencardandvisanews.com/new-hope-for-foreigners-who-are-subject-to-the-threeten-year-bar/feed 0 Important issues about the filing of I-485 adjustment application http://greencardandvisanews.com/important-issues-about-the-filing-of-i-485-adjustment-application http://greencardandvisanews.com/important-issues-about-the-filing-of-i-485-adjustment-application#comments Sat, 24 Dec 2011 00:16:00 +0000 Tushar Mathur http://greencardandvisanews.com/?guid=bce9db91010b51e1c50004d7aae6ebf3 The cutoff dates for employment based 2nd preference immigrant visa for China and India have advanced significantly for the past three months.  Since November 2011, the cutoff dates have leaped forwarded by more than 17 months to January 1, 2009.  The rapid advancement means that many EB-2 professionals and advance degree holders are able to submit their I-485 application to adjust status to that of legal resident of the United States.  Simultaneously the applicant may also apply for a general employment authorization document (EAD) and a travel document.   Upon approval of the I-485 application, the applicant will receive her permanent resident card (or green card).  There are some important issues related to this last step of the immigration process.

First and foremost, an applicant must ensure that she is not subject to any grounds of inadmissibility that would cause the denial of her green card.  The U.S. immigration laws specify certain classes of individuals who are not allowed to immigrate to the U.S.  For example, foreigners who have a communicable disease are not eligible to enter the U.S.  Similarly, individuals who have serious physical or mental disorder which may pose danger to others are also excluded from admission.  Persons who have been convicted for “crimes involving turpitude” are usually not allowed for admission.  There are some waivers and narrow exceptions to some of these grounds of exclusions but serious criminal offenders are most certainly not eligible for these exceptions.  If a person is found not eligible for a green card, she may also be placed in removal proceedings by the Department of Homeland Security.  Hence it is important to evaluate one’s background before applying for permanent resident status.

Extensive documentation is required to support an I-485 adjustment application including one’s immigration background documents, employment related documents, tax and financial documents, medical health report, and all the required application forms.  The fingerprints of the applicant will be taken and a thorough background check will be conducted by FBI.  The sponsoring employer must also provide evidence that it will permanent employment to the applicant. 
Another common issue of I-485 applicants is lapses in status in the past because of lay-offs and other reasons which resulted in their violations of nonimmigrant status.  A H-1B employee might have been “benched” by an employer in tough economic times; an F-1 student could have been failed to maintain a full-time course load due to financial or health reasons; etc.  Certainly applicants such as J-1 exchange visitors might also need a waiver for his foreign residence requirement.  Again, careful planning and analysis is required for applicants with specific status problems.

Foreign spouses and children of I-485 applicants are also eligible to apply for permanent resident status as derivative applicants.  Hence, if an applicant has plans to get married, he may want to adjust his plans in such a way that his future spouse would be able to adjust status as well.  However, sufficient evidence should be presented to prove that the marriage is not one of convenience.  The Department of Homeland Security will scrutinize new marriages carefully to ascertain that no elements of fraud are involved. 

The medical examination required for immigration can also be an issue for some applicants.  For example, many applicants from Asian countries initially test positive for TB (pulmonary tuberculosis), which is a contagious bacterial infection, although they have not been infected with the bacteria.  The false positive result could have been caused by previous vaccinations that they received in Asia.  Applicants must work closely with their attorney and physician to use further tests to confirm that they are not contagious.  Otherwise, they would not be eligible to receive a green card.     



]]> http://greencardandvisanews.com/important-issues-about-the-filing-of-i-485-adjustment-application/feed 0 Deportation Cases of Illegal Immigrants to Be Reviewed – NYTimes.com http://greencardandvisanews.com/deportation-cases-of-illegal-immigrants-to-be-reviewed-nytimes-com http://greencardandvisanews.com/deportation-cases-of-illegal-immigrants-to-be-reviewed-nytimes-com#comments Thu, 17 Nov 2011 14:23:00 +0000 Tushar Mathur http://greencardandvisanews.com/?guid=770037ffab67e0be389f03cf14e557da Deportation Cases of Illegal Immigrants to Be Reviewed – NYTimes.com: “The Department of Homeland Security will begin a review on Thursday of all deportation cases before the immigration courts and start a nationwide training program for enforcement agents and prosecuting lawyers, with the goal of speeding deportations of convicted criminals and halting those of many illegal immigrants with no criminal record.”

‘via Blog this’



]]> http://greencardandvisanews.com/deportation-cases-of-illegal-immigrants-to-be-reviewed-nytimes-com/feed 0 L-1 visa petitions for applicants starting a new U.S. office http://greencardandvisanews.com/l-1-visa-petitions-for-applicants-starting-a-new-u-s-office http://greencardandvisanews.com/l-1-visa-petitions-for-applicants-starting-a-new-u-s-office#comments Wed, 02 Nov 2011 04:20:00 +0000 Tushar Mathur http://greencardandvisanews.com/?guid=33395ade4906a4f4fd2442e1d3abd225 Immigration Act Section 101(a)(15)(L) allows a multinational company to temporarily transfer foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer.   Petitioners seeking to classify foreigners as intracompany transferees must file an I-129 petition with a USCIS service center for a determination.  There are many complicated issues involved in the adjudication of an L-1 visa petition.  For examples, the petitioner must establish that there is a qualifying relationship between the U.S. business entity and the foreign operation which employs the beneficiary abroad; the foreign national must have been employed abroad by the related foreign entity for at least one of the last three years in an executive, managerial, or specialized knowledge capacity; the U.S. business and the foreign company must continue to do business in the U.S. and a foreign country, either directly or through a related business entity such a parent, branch, subsidiary, etc.
The L-1 visa category has been identified by the government as one with vulnerabilities. For example, in a 2006 report prepared by the Inspector General’s Office of the Department of Homeland Security, there were concerns raised about whether foreign nationals will be coming to the U.S. to perform the duties in an L-1 executive or manager capacity.  The government was also concerned about the definition of “specialized knowledge” being too broad.  Finally, the government found it difficult to verify a petitioner’s foreign operations and recommended measures to start investigations in foreign countries.  Consequently, each L-1 petition is subject to very strict scrutiny by the USCIS. 
For L-1A managers or executives who are transferred to the U.S. to start a new office, their visa applications are subject to even stricter examination by the adjudication officers.  The government adjudicators often question the veracity of such petitions and issue lengthy requests for further evidence requiring the production of extensive amount of documentation such as lease agreements, company organizational charts, employee information and job duties, financial documents, business documents such as invoices and purchase orders, etc.   Petitioners often find it difficult to respond to such requests because, by definition, a new office usually does not have a history of business transactions, a team of professional employees, or even a fixed office location.  To the extent that the petitioner has the burden to provide the documentation required to establish eligibility for L classification, failure to satisfy a request for additional evidence often would lead to a denial of the petition. 
The issue is further complicated by the modern-day technologies and different means of conducting business.  It is often possible for a new business operation to take off without plenty of office space and a team of employees.  All one needs is a telephone, a fax machine, a telephone and an internet connection.  Many well-known U.S. corporations started humbly in the founder’s garage.  When foreign companies start a new branch office in the U.S., oftentimes they want to keep costs and overhead low.  Before there is sufficient business volume to justify further expansion, these companies are hesitant to hire a team of professionals or sign a long term lease for office and warehouse spaces.  However, when an L-1 visa petition is adjudicated, these nuisances generally cannot be used as excuses for failure to produce the required documents.
The American Immigration Lawyers Association has brought these issues to the attention of the USCIS in a recent meeting, and the USCIS has agreed to take AILA’s recommendations into consideration. The USCIS also commented that each case will be adjudicated based on its particular set of facts.  For example, the evidentiary requirements for a request of a one-year extension of L-1 status and a request for a two-year extension of status will be different.  Similarly, the evidence required to approve an import-export business’ petition will also be different from the evidence required to approve a chemical manufacturing company.  The USCIS is also currently reviewing and revising its templates for L-1 Requests for Evidence.  It is hopeful that positive changes will be made soon.  One important issue to note is that, it is not wise to exaggerate the expansion plans or inflate the projected business revenues in the initial petition, as the USCIS will hold them against the petitioner during the adjudication of a subsequent extension petition.



]]> http://greencardandvisanews.com/l-1-visa-petitions-for-applicants-starting-a-new-u-s-office/feed 0 USCIS Initiatives for Entrepreneurs and High Skilled Workers – EB2 Workers, NIW Petitions, H1B Self-Petitions, etc. http://greencardandvisanews.com/uscis-initiatives-for-entrepreneurs-and-high-skilled-workers-eb2-workers-niw-petitions-h1b-self-petitions-etc http://greencardandvisanews.com/uscis-initiatives-for-entrepreneurs-and-high-skilled-workers-eb2-workers-niw-petitions-h1b-self-petitions-etc#comments Sun, 07 Aug 2011 19:32:00 +0000 Tushar Mathur http://greencardandvisanews.com/?guid=1ca093b859ea35db79c8e24d22b9d428

USCIS Director Alejandro Mayorkas announced recently in a blog post several new initiatives to encourage entrepreneurs and high-skilled workers to bolster the U.S. economy and stimulate job growth.   Director Mayorkas noted that the U.S. has a long history of welcoming innovative entrepreneurs and skilled workers into our country, and in turn they would fuel the nation’s economy by creating jobs, and promoting new technologies and ideas.   It is the Obama Administration’s policy to continue this long standing tradition.  Consequently, a series of new policy, operational, and outreach efforts will be pushed out by USCIS to help expand the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start business enterprises and create job opportunities in America.   Fully supported by the Department of Homeland Security, these measures will also ensure that America will continue to innovate and compete in a global economy. Specifically, these measures will include:
 (1) Allow immigrant entrepreneurs to obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver (NIW) under the EB-2 immigrant visa category if they can establish that their business endeavors will benefit an important interest of the United States – This is a breakthrough for self-employed applicants, whose immigrant petitions have been subject to very strict scrutiny.  
(2) Expand the Premium Processing Service to immigrant petitions for multinational executives and managers – This new policy will speed up the application process for key employees and managers to immigrate to the U.S.
(3) Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa – Clarification of this sticky issue will make the H-1B program more predictable and versatile for the professional entrepreneurs.
(4) Enhance and streamline the EB-5 (Investor Visa Program) process based directly on stakeholder feedback – This step will make it easier for foreigners to invest their capital and to create job opportunities in the U.S.
(5) Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies.  For example: the Director launched “Conversations with the Director,” which is a new series of small group meetings to be held to discuss immigration issues important to communities around the country.   
In today’s global economy, both cash investment and human capital are essential for any country to grow its economy.   

We applaud these concrete efforts of USCIS to facilitate the inflow of capital and skilled workers into the U.S.  We will continue to report any concrete plans for the implementation of these new initiatives.  



]]> http://greencardandvisanews.com/uscis-initiatives-for-entrepreneurs-and-high-skilled-workers-eb2-workers-niw-petitions-h1b-self-petitions-etc/feed 0 Role of Immigration and Naturalization Services http://greencardandvisanews.com/role-of-immigration-and-naturalization-services http://greencardandvisanews.com/role-of-immigration-and-naturalization-services#comments Sat, 20 Feb 2010 13:32:01 +0000 Tushar Mathur http://greencardandvisanews.com/?p=53 Immigration and Naturalization Service also known as INS is an organization that protects and enforces laws of naturalization. Naturalization can be detailed as a process that permits a person born in foreign country to become a citizen of United States. It also tracks the illegal entrants and thus maintains the security and deports the people living illegally in United States. Thus we can say that it is an organization that maintains and puts into the actions required to sustain the security bar of United States.

The United States Immigration and Naturalization Service (INS) was formerly known as the subsidiary firm of the Department of Justice, but is now part of the Department of Homeland Security. The INS grants student visa, tourist visa or any extended stay visas for foreign born citizens who wish to extend their stay in the United States.

After the 9/11 attacks on the United States, the Immigration and Naturalization Services were made strict on strengthening the national security and tightening the antiterrorism. All the guidelines of this agency were made very stringent for issuance of visa and even on the general criteria for prolonged entry in United States.

INS also holds the responsibility of detention and questioning the suspected visa holders might be connected to terrorist organisation. The detention period can be of any reasonable length of time that might be required to check or gather the information required to scrutinise the suspect. INS is also powered by Mobilization Against Terrorism Act (MATA) thus it holds the power to deport or file a case against any foreign person that may be connected to any terrorism or such organisations. INS also holds the right to cancel the visa or green card of the suspect found in connection to any terrorist group.

INS works to cut down the number of people who entered United States through its Border Patrol. INS is also responsible for searching out the illegal foreigners and to deport them back to their nation. It also imposes stiff criminal penalties for the agents who exploit illegal aliens.

Thus INS works as a stringent security organisation that keeps an eye on each and every foreign born person who enters the United States and also keeps track on their activities.

]]> http://greencardandvisanews.com/role-of-immigration-and-naturalization-services/feed 0 The POE in the United States http://greencardandvisanews.com/the-poe-in-the-united-states http://greencardandvisanews.com/the-poe-in-the-united-states#comments Sat, 16 Jan 2010 15:58:05 +0000 Tushar Mathur http://greencardandvisanews.com/immigration-news/the-poe-in-the-united-states/

Once you have all your documents all made and you have arrived to the United States then, that at the Air port you would have to pass through the POE (port of entry) this is the last huddle for you before you enter the United States with a legal status no matter on what visa or for what ever reason you are traveling.

Here at the port of entry the immigration or the customs officer would be asking you questions about your travel and the reasons of your travel, the duration of the stay which is intended for and they would be expecting reasonable answers as per the other paper works would say there could be conversations that he or she might choose to indulge in to based upon what the officer deems fit. Once all that is done, and the officer is convinced with the reason of your travel and he is sure about the legal aspect of your passport, visa and other related paper works then they would stamp your passport. Once the stamping is done then they would be giving you the counter part of the I 94 form.

Now you need to understand that what ever date is mentioned in the I 94 is what your legal deadline is for staying in the United States. This has got nothing to do with the dates mentioned on the Visa. As per the new program called US Visit, the travelers to the United States would be required essentially to provide the authorities with their finger prints and their digital photo graphs. This law is applicable at all the 115 airports across the United States, along with the 15 sea ports that are present in the United States. All the travelers would have to pose for the digital photographs and their finger prints would be collected by the designated officers, at the port of entry.

This US Visit program has added another level of security to the United States department of homeland security. Now once all that is done. Then you are all good to move ahead to proceed towards the luggage collection counter. The conveyer belt would be carrying your baggage to you. What you also need to understand that like you your luggage would also have to pass through different levels of security before they are actually permitted in to the United States. Thus once the officials are convinced about the contents of your luggage are absolutely not hazardous then only they are passed for collection by the traveler. So the luggage collection counter would be the last stop for you in the airport post that you could proceed towards the cab.

]]> http://greencardandvisanews.com/the-poe-in-the-united-states/feed 0 New Rule in Force from 6th October http://greencardandvisanews.com/new-rule-in-force-from-6th-october http://greencardandvisanews.com/new-rule-in-force-from-6th-october#comments Sat, 10 Oct 2009 18:13:30 +0000 Tushar Mathur http://greencardandvisanews.com/?p=32

There is a rule from the Department of Homeland Security that requires the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. To comply with the same now the consular officers are required to ensure that, the said applicants have obtained an I-129 petition form from the Department of Home land security, prior to the issuance of the visa. The said rule has been in force from the 6th of October 2009.

In case there is a further requirement of a clarification about this rule you might feel free to get in touch with the Legislation & Regulations division of the Visa Service’s. The contact person would be Lauren Prosnik. Phone # (202) 663-2951.

Now the question is what is this rule been promulgated for? The answer to that is, on the 26th of Nov 08, the department of homeland security announced the requirement for the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. Also as per the same law the period of the validity of the visa is not supposed to exceed the period as mentioned in the petition. As a result of that, an R-1 non-immigrant visa would now require the applicant to be established as a beneficiary of an approved petition. The implementation of this petition requirement by the United States Citizenship and Immigration Services has been, for the purpose of authenticating and determining the petitions from the religious organizations for the religious workers. This would also help to ensure that such religious workers are admitted into the United States on the request of a religious organization and that is exactly where the workers work.

Miscellaneous regulatory findings:

As per the Administrative procedure act there is a regulation that involves the foreign affairs function of the US therefore according to the 5 USC 553(a)(1) is not subjected to the procedures of rule making as set by 5 USC 553.

As per the Executive orders 12866, the new rule has been reviewed by the department of State to ensure its consistency with the regulatory philosophy and the principals set by the Executive orders 12866. They have also determined that the cost of maintaining this rule is justified according to the benefits that are to be derived out of it.

As per the paper work reduction act does not impose the requirements of information collection, as per the provisions of the paper work reduction act 44 USC chapter 35.

]]> http://greencardandvisanews.com/new-rule-in-force-from-6th-october/feed 0 E-Verify enforced from Sep 8th http://greencardandvisanews.com/e-verify-to-be-enforced-from-sep-8th http://greencardandvisanews.com/e-verify-to-be-enforced-from-sep-8th#comments Sat, 12 Sep 2009 11:03:58 +0000 Tushar Mathur http://greencardandvisanews.com/?p=21 Effective the 8th of Sep 2009 all the federal contractors and the sub contractors would be required to start using the E Verify system. This E Verify system would be primarily used to by the contractors to verify the eligibility of their employees to be working in the United States. As an act of prudence in July 09, Janet Napolitano the secretary of the Homeland Security Department (DHS) announced the administration’s support for the regulation by confirming that federal contracts would only be offered to the employers who would choose to have the E Verify system to validate the eligibility status of their employees.

This E Verify system is a totally web based system. The way it works is that it compares the data from the I-9 verification form, with the federal government data bases. And eventually produces a nod from the Department of Homeland Security, about the eligibility of the person concerned to work in the United States. This is a service run by the DHS in collaboration with the social security administration. This is an extremely careful step that has been taken by the United States government. To ensure there are no flaws in the employment system. This E Verify system would be responsible to figure out if any unauthorized alien is working in the United States or even helping them in any manner. The E Verify system would also help the federal employees uphold the prevailing laws of the country related to the federal immigration laws and total compliance to them.

The Case 2007 013, which is the Federal Acquisition rule, would create provision of the full usage of the E Verify system as a mandate for not only the federal contractors and the sub contractors of the federal departments but also for the beneficiaries of funds from the American Recovery and Reinvestment Act. Post the 8th of Sep the usage of the E Verify system would be introduced as a clause and a mandate for the fore said employers. The companies that would be awarded a federal contract would be required to enroll themselves in the E Verify system within the next 30 days and verify the status of all the existing and the newly hired employees.

It has been recorded that since Oct 2008, as many as 146,000 participating employers have verified their employees at more than 551,000 sites Since then the number of verification queries that have been run shoots to more than 7.5 million and now the status is more than 97% of all the queries are automatically confirmed as permitted to work within a span of twenty four hours or less.

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